that Duncombe had committed the frauds for which it was proposed to punish him in so extraordinary a manner? In the House of Commons, he had been taken by surprise; he had made admissions of which he had not foreseen the consequences; and he had then been so much disconcerted by the severe manner in which he had been interrogated that he had at length avowed everything. But he had now had time to prepare himself; he had been furnished with advice by counsel; and, when he was placed at the bar of the Peers, he refused to criminate himself and defied his persecutors to prove him guilty. He was sent back to the Tower. The Lords acquainted the Commons with the difficulty which had arisen. A conference was held in the Painted Chamber; and there Hartington, who appeared for the Commons, declared that he was authorized, by those who had sent him, to assure the Lords that Duncombe had, in his place in Parliament, owned the misdeeds which he now challenged his accusers to bring home to him. The Lords, however, rightly thought that it would be a strange and a dangerous thing to receive a declaration of the House of Commons in its collective character as conclusive evidence of the fact that a man had committed a crime. The House of Commons was under none of those restraints which were thought necessary in ordinary cases to protect innocent defendants against false witnesses. The House of Commons could not be sworn, could not be cross-examined, could not be indicted, imprisoned, pilloried, mutilated, for perjury. Indeed the testimony of the House of Commons in its collective character was of less value than the uncontradicted testimony of a single member. For it was only the testimony of the majority of the House. There might be a large respectable minority whose recollections might materially differ from the recollections of the majority. This indeed was actually the case. For there had been a dispute among those who had heard Duncombe's confession as to the precise extent of what he had confessed; and there had been a division; and the statement which the Upper House was expected to receive as decisive on the point of fact had been at last carried only by ninety votes to sixty-eight. It should seem therefore that, whatever moral conviction the Lords might feel of Duncombe's guilt, they were bound, as righteous judges, to absolve him.
After much animated debate, they divided; and the bill was lost by forty-eight votes to forty-seven. It was proposed by some of the minority that proxies should be called; but this scandalous proposition was strenuously resisted; and the House, to its great honour, resolved that on questions which were substantially judicial, though they might be in form legislative, no peer who was absent should be allowed to have a voice.
Many of the Whig Lords protested. Among them were Orford and Wharton. It is to be lamented that Burnet, and the excellent Hough, who was now Bishop of Oxford, should have been impelled by party spirit to record their dissent from a decision which all sensible and candid men will now pronounce to have been just and salutary. Somers was present; but his name is not attached to the protest which was subscribed by his brethren of the junto. We may therefore not unreasonably infer that, on this as on many other occasions, that wise and virtuous statesman disapproved of the violence of his friends.
In rejecting the bill, the Lords had only exercised their indisputable right. But they immediately proceeded to take a step of which the legality was not equally clear. Rochester moved that Duncombe should be set at liberty. The motion was carried; a warrant for the discharge of the prisoner was sent to the Tower, and was obeyed without hesitation by Lord Lucas, who was Lieutenant of that fortress. As soon as this was known, the anger of the Commons broke forth with violence. It was by their order that the upstart Duncombe had been put in ward. He was their prisoner; and it was monstrous insolence in the Peers to release him. The Peers defended what they had done by arguments which must be allowed to have been ingenious, if not satisfactory. It was quite true that Duncombe had originally been committed to the Tower by the Commons. But, it was said, the Commons, by sending a penal bill against him to the Lords, did, by necessary implication, send him also to the Lords. For it was plainly impossible for the Lords to pass the bill without hearing what he had to say against it. The Commons had felt this, and had not complained when he had, without their consent, been brought from his place of confinement, and set at the bar of the Peers. From that moment he was the prisoner of the Peers. He had been taken back from the bar to the Tower, not by virtue of the Speaker's warrant, of which the force was spent, but by virtue of their order which had remanded him. They, therefore, might with perfect propriety discharge him.
Whatever a jurist might have thought of these arguments, they had no effect on the Commons. Indeed, violent as the spirit of party was in those times, it was less violent than the spirit of caste. Whenever a dispute arose between the two Houses, many members of both forgot that they were Whigs or Tories, and remembered only that they were Patricians or Plebeians. On this occasion nobody was louder in asserting the privileges of the representatives of the people in opposition to the encroachments of the nobility than Harley. Duncombe was again arrested by the Serjeant at Arms, and remained in confinement till the end of the session. Some eager men were for addressing the King to turn Lucas out of office. This was not done; but during several days the ill humour of the Lower House showed itself by a studied discourtesy. One of the members was wanted as a witness in a matter which the Lords were investigating. They sent two judges with a message requesting the permission of the Commons to examine him. At any other time the judges would have been called in immediately, and the permission would have been granted as of course. But on this occasion the judges were kept waiting some hours at the door; and such difficulties were made about the permission that the Peers desisted from urging a request which seemed likely to be ungraciously refused.
The attention of the Parliament was, during the remainder of the session, chiefly occupied by commercial questions. Some of those questions required so much investigation, and gave occasion to so much dispute, that the prorogation did not take place till the fifth of July. There was consequently some illness and much discontent among both Lords and Commons. For, in that age, the London season usually ended soon after the first notes of the cuckoo had been heard, and before the poles had been decked for the dances and mummeries which welcomed the genial May day of the ancient calendar. Since the year of the Revolution, a year which was an exception to all ordinary rules, the members of the two Houses had never been detained from their woods and haycocks even so late as the beginning of June.
The Commons had, soon after they met, appointed a Committee to enquire into the state of trade, and had referred to this Committee several petitions from merchants and manufacturers who complained that they were in danger of being undersold, and who asked for additional protection.
A highly curious report on the importation of silks and the exportation of wool was soon presented to the House. It was in that age believed by all but a very few speculative men that the sound commercial policy was to keep out of the country the delicate and brilliantly tinted textures of southern looms, and to keep in the country the raw material on which most of our own looms were employed. It was now fully proved that, during eight years of war, the textures which it was thought desirable to keep out had been constantly coming in, and the material which it was thought desirable to keep in had been constantly going out. This interchange, an interchange, as it was imagined, pernicious to England, had been chiefly managed by an association of Huguenot refugees, residing in London. Whole fleets of boats with illicit cargoes had been passing and repassing between Kent and Picardy. The loading and unloading had taken place sometimes in Romney Marsh, sometimes on the beach under the cliffs between Dover and Folkstone. All the inhabitants of the south eastern coast were in the plot. It was a common saying among them that, if a gallows were set up every quarter of a mile along the coast, the trade would still go on briskly. It had been discovered, some years before, that the vessels and the hiding places which were necessary to the business of the smuggler had frequently afforded accommodation to the traitor. The report contained fresh evidence upon this point. It was proved that one of the contrabandists had provided the vessel in which the ruffian O'Brien had carried Scum Goodman over to France.
The inference which ought to have been drawn from these facts was that the prohibitory system was absurd. That system had not destroyed the trade which was so much dreaded, but had merely called into existence a desperate race of men who, accustomed to earn their daily bread by the breach of an unreasonable law, soon came to regard the most reasonable laws with contempt, and, having begun by eluding the custom house
